*1 Defendant-Appellee. dis- and remand Zheng’s sentence Gonzales, resentencing. See trict court No. 04-41147. F.3d at 584. Appeals, States
United Court Fifth Circuit. (3) Bodily Harm Risk of June Zheng’s vacate sentence we Because ques- not reach the entirety, we need court erred the district tion of whether Zheng’s on a based
enhancing sentence U.S.S.G. pursuant
finding, 2B5.3(b)(4), goods counterfeit reckless risk of “the conscious or
involved bodily light Zheng’s In injury.”
serious that, appeal, merely note
argument on remand, court, on the district
should enhancement, it again apply
choose the decision. clarify basis of
should
III. CONCLUSION conviction, VA- Zheng’s AFFIRM
We sentence, REMAND for his
CATE
resentencing light of the district court’s applying U.S.S.G. interpreting
error in
§ 2B5.3. Mikeska;
Wayne MIKESKA; Janice Smith; Smith,
Mose Carol
Plaintiffs-Appellants, GALVESTON;
CITY OF al., Defendants,
et *2 (argued), L.
J. David Breemer Meriem Found., Sacramento, Hubbard, Legal Pac. CA, Moore, M Moore & Robert M. Robert Galveston, TX, Associates, for Plaintiffs- Appellants. Vie, (argued), III Mills
George William Galveston, TX, Defendanb-Ap- Shirley, pellee. Cross, change Brian E. Ber- boundaries of the easement
Kenneth Charles Gens., Austin, TX, wick, Atty. counterparts. Fein physical Asst. with their State, Amicus Curiae. man v. S.W.2d 110-11 (Tex.App.Ct.1986). *3 against
The OBA makes it “an offense
any per-
of this state for
public policy
the
HIGGINBOTHAM,
Before
create, erect,
any
son to
or construct
ob-
CLEMENT,
Circuit
BARKSDALE
struction, barrier,
restraint
that will
or
Judges.
right
public]
...
of the
[with
interfere
the
any public
to enter or to leave
beach.”
CLEMENT,
EDITH
Circuit
BROWN
61.013(a).
§
empowers
Texas
the Texas
Judge:
(“GLO”) to
General Land Office
both
panel rehearing
is DE
petition
The
“strictly
vigorously
prohi-
enforce the
prior opinion, Mikeska v.
NIED. The
against
bition
encroachments on and inter-
1. The List consisted of 107 homes on and therefore considered 100% encroachments that, Frances, the Texas coast after vegetation seaward of the natural 100% line II. (“City”) then con- Galveston homes, disabling appellants’ demned appellants challenge two relat including important utilities number of They the district court. ar rulings ed sewer, Al- and water services. electricity, gue City’s persistent that neither the deni Attorney concluded though the General requests al appellants’ of the require homes did not that the treatment connections nor its differential removal, appellants office notified his homes vis-a-vis sit any ques- deferring that it was by letter uated houses was related to utilities the reconnection of tions as to governmental interest. City. appellants sub- services zoning action particular “Whether a has *4 the re- requests a number of mitted requisite relationship rational to a le water, and electricity, their connection of question interest is a gitimate government lines, ap- lines. As to the sewer sewer law,” v. Props. Operating City of FM Co. City’s to the requested connection pellants (5th Austin, 93 F.3d 172 n. 6 of through the line built newly constructed 1996), the district court’s determination of appel- subdivision. The Bermuda Beach which de novo. Simi Inv. Co. is reviewed along with those from five requests, lants’ 240, 249 County, v. Harris 236 F.3d in are located whose homes also others Cir.2000). in turn. Each claim is discussed Beach,2 rejected. Bermuda in filed suit appellants subsequently The A. seeking preliminary a federal court both To succeed on a substantive due City to allow the injunction to force the claim, plaintiff a must cross two process compen- utility services restoration First, allege depriva a hurdles. he grant- satory damages. The district court constitutionally right. protected tion of a injunction request, and preliminary ed the Simi, at 249. The district court 236 F.3d for mon- appellants pursued their suit have a constitu appellants held that the City ey damages, averring that the violat- in their homes and tionally protected right process their substantive due ed services, public utility in a deci access to under the color of state protection rights City that the does not seek to disturb sion § 42 1983.3 law violation U.S.C. here, Thus, issue appeal. precise City’s summary judg- motion for On the prong and last of the sub and the second ment, court dismissed the com- the district test, is whether stantive due court, the According to the district plaint. “rationally relat action was governmental actions were related governmental a interest.” legitimate ed to open 174) at Props., FM (quoting Id. (substantive process) and to the beach omitted). (internal quotations follow state law to City’s obligation to dispute the City appellants The from interfer- “protect beaches state law. duties under appellants scope of (equal protection). ence” The it a City contends that has The timely appeal. filed claim, brought takings a appellants also separate 3. The other five homeowners filed suit, ultimately by Judge dismissed That deci- which was the district court dismissed. which Kent, presiding judge for was also the who appealed. sion is not Galves this action. See Korndorffer 9, 2002) ton, (S.D.Tex. July G-02-144 No. (unpublished). in following improvement interest its obli- or substantial to land or the governmental structure,” necessary to Its actions were size of under state law. gations interest, preexisting reconnect utilities to a home. City argues, in to this related 15.2(18). Indeed, § designed protect access the OBA Tex. Admin. Code City’s zoning code that no states promul- the GLO has beachfront construction certificate is need- rules for the enforcement of the gated repairs, ed for “routine maintenance and OBA, generally and the GLO and the upkeep existing structures.” protec- matters related to the cooperate on 29-90(a)(3). § Zoning Galveston Ordinance tion of the Tex. Nat. Res. reconnected and sewer 61.013; § Tex. Admin. Ann. Code Code thirty service to homes that were 15.3; Application also see identified as encroachments on the Beachfront Galveston Construetion/Dune running any explicit beach without afoul of appellants chal- Protection Permit. Therefore, provisions. state law assertion, contending that noth- lenge this authority had at least some under state ing explicitly the OBA the deni- deciding law for disposition permit permits al of situations such as service requests. *5 this. Perhaps City the also had some authori provide law does the with an State ty deny utility permits pursuant to to its protection role in the of the important obligations state law protect public to However,
public beach. the obli- However, in exercising beaches. that dis provisions the relevant gations, under cretionary authority, the must still Administrative Code and the the Texas conform to obligations. its constitutional OBA, did not mandate that the refuse v. Vaughn, Mickens-Thomas Cf. existing to reconnect utilities to homes. (3d Cir.2003) 374, 386 in (noting, a differ Rather, City’s obligations under state context, possession ent that a “[t]he prohibiting limited to law were “construc- discretionary component” fails to remove tion.” The Texas Administrative Code governmental action from “constitutional prohibits governments local from Thus, scrutiny”). actions be any issu[ing] beachfront construction rationally related to some other indepen authorizing certificate construction land- legitimate dent and interest. public ward of the beach that functional- rational on, only basis test not ly depends supports or or is other- interest, a to, legitimate state but also that proposed existing wise related or government action is related structures that encroach on the furthering to that interest. There is in- regardless of whether the en- deed a state interest at stake— croaching structure is land that was protection previously landward of the but, at stage, government this beach— 15.5(c)(2). 31 Tex. Admin. Code provide any fails to why rational reason emphasizes ap- this code section refusing to reconnect utilities to houses construction, plies any even related to a public found on beach furthers the end of structures, preexisting support argu- protecting public access to beaches. simply ment that it did not have the au- thority record, appellants’s to reconnect the utili- After further development of the However, “construction,” ties. no may light defined facts come to that indeed serve as or “[clausing carrying any building, out to indicate that there a rational basis excavation, bulkheading, filling, clearing, government’s example, for the action. For reconnecting justification claim asks a the utili- whether exists might learn that we or hanging power. obtrusive wires for the exercise of that ties involved differential meters that would placing unsightly bring equal protection water such claim To an the beach. How- use of discourage public appellant zoning permits,4 the denial ever, of such no indication facts there is must show that the difference treatment summary judgment at the record similarly with others situated was irration- to invent them. stage, and we decline Olech, al. Vill. Willowbrook v. 528 U.S. Thus, argu- government’s find that the we 564, 1073, 145 L.Ed.2d S.Ct. in the nothing ment fails because there (2000) (“Our recognized cases have suc- suggest that con- record us to before ... cessful claims where sys- appellants’ nection of either the sewer plaintiff that she has been in- alleges electricity or and water lines to tem their tentionally differently from treated others grid would hinder the service is no situated and that there ra- or public’s to the beach otherwise access tional basis for the difference treat- impermissible serve as an encroachment ment.”). under the OBA. failed to offer rea the “local City argues, govern- As the son for the differential treatment right” to be in imple- ment does not have Although in its brief. homes law, nor menting requirements City proffered reasons at two oral may plaintiff bootstrap violations of state argument of the its denial into The appellants’ law the Constitution. application, general as a matter permit allegations implicate neither these con- newly arguments do not minted at address cerns, City must however. The conform *6 See, argument. e.g., Whitehead v. oral discretionary actions to its its constitution- Inc., 265, Miss., Max 163 F.3d 270 Food of obligations; al has not because Cir.1998). (5th Furthermore, the fact that requisite demonstrated the rational rela- for the these reasons were raised first summary tionship to sustain a motion our argument time at oral bolsters view litigation, of
judgment stage at this justifica they are merely post that ex facto as vacate the district court’s determination the City’s tions for irrational treatment. process to the due claim. substantive lack reasons for the of identifiable
B. City’s general actions the more highlights insufficiency evidentiary problem the equal protection only proffered support. City’s evi claim on their contention that is based (a) Judge dence Kent’s decision consists of there a number of other situ are dismissing complaint of other the similar ated allowed homes reconnection plaintiffs against City, v. In of their services. contrast to a Korndorffer (S.D.Tex. action, No. G-02-144 solely which looks (b) 2002) 9, July (unpublished), government’s power exercise of its vis to the equal response an motion in appellants, protection a-vis the contention, 176, (7th Cir.1995); Bryan v. City's 179 Contrary appel 4. Madison, 267, (5th Cir.2000) lants' cause action does 277 F.3d 213 types of Esmail, 176). not sound in two other "class of one” (citing reject We thus 53 F.3d enforcement,” Pro claims: "selective Allred's apply City's we must contention that Dep’t Agric., duce F.3d v. United States 178 higher evidentiary would burden that normal- 743, (5th 1999), "personal 748 Cir. vindic ly required by claim. be either Macrane, v. tiveness.” See Esmail 53 F.3d beaches, injunction request. tory open Neither of con- equal protection these cognizable evidentiary stitutes a source. claim.
Indeed, argument at oral con- support
ceded that it had failed to
arguments with record evidence. This evidentiary
lack of support particularly regard
acute with to the refusal to recon- electricity
nect and water services—the reason, posits no let alone sup- one evidence, by ported for how reconnection McCORMICK, Linda Plaintiff- particular of those services interfered with Appellant,
C. BRAVERMAN, al.; Eric A. et Citizens Company America, Insurance et Although becoming we are to resist al., Defendants-Appellees. boards,” “super zoning S. Gwinnett Ven Pruitt, 389, ture v. 482 F.2d No. 04-1708. 1973), plainly consistently “[w]e have United Appeals, States Court of held that zoning decisions are to be re Sixth Circuit. by
viewed federal by courts the same con stitutional employ standards that we 2, Submitted: Feb. 2006. review by statutes enacted legis 20, Decided and Filed: June Station, latures.” Shelton v. Coll. (5th Cir.1986). Without supporting evidence for the ratio
nales, summary we hold that judgment at stage improper.
III.
The decision of the district court is VA-
CATED and REMANDED for further
proceedings. HIGGINBOTHAM,
PATRICK E.
Circuit Judge, concurring part and
dissenting part:
I concur in all respects, except that I
would affirm the district grant court’s
summary judgment dismissing the sub-
stantive claim. my eyes, To
the challenged purpose is rational as
a matter of I agree law. the case go forward on the challenge to the
means of achieving the purpose of manda-